On December 20, 2016, the Supreme Court of Ohio handed down a merit decision in State ex rel. Cincinnati Enquirer v. Deters, 2016-Ohio-8195.

In this mandamus action, in a unanimous opinion written by Justice Lanzinger, in which Justice French concurred in judgment only, the court dismissed the complaint as to the relators who failed to request the body-cam video from the prosecutor’s office, and denied the writ as to the other relators because the body-cam video has been produced. The request for statutory damages and fees was denied because the body-cam video was produced within a reasonable period of time. The case was argued June 14, 2016.

(A)(2) (“Confidential law enforcement investigatory record (CLEIR) exception means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following: (a)The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised. (c) Specific confidential investigatory techniques or procedures or specific investigatory work product”)

(A)(4) (defines trial preparation exception)

R.C. 149.43(B)(1) (“Upon request . . . all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours . . . upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time. If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt.”)

R.C. 149.43(C)(1) (Noting that a person allegedly aggrieved by the failure of a public office to promptly prepare a public record may bring suit. Statutory damages may be awarded if the public record is not provided timely.)

State ex rel. Morgan v. Strickland, 2009-Ohio-1901 (The determination of what is reasonable timing for the release of public records depends on all the pertinent facts and circumstances. Further, “R.C. 149.43(A) envisions an opportunity on the part of the public office to examine records prior to inspection in order to make appropriate redactions of exempt materials.”)

Case Background

On Sunday July 19, 2015, University of Cincinnati Police Officer Ray Tensing shot and killed Samuel Dubose in a neighborhood off the University campus. A video and audio recording of the events leading up to the shooting, the shooting itself, and the aftermath were recorded by a body-cam worn by Officer Tensing. That body-cam video is the source of this mandamus action.

Who Had the Tensing Video?

Later the same evening of the shooting, an assistant Hamilton County Prosecutor went to the scene and requested that the University of Cincinnati Police Department (UCPD) and the Cincinnati Police Department (CPD) withhold the video until after the prosecutor’s office presented the case to the grand jury. Shortly after midnight, a UCPD officer prepared an incident report for the shooting.

Timeline

July 20, 2015

The Enquirer requested a copy of the incident report, the body-cam video, and Tensing’s personnel file from the University of Cincinnati and from the CPD.

WLWT requested a copy of the body-cam video from the prosecutor’s office, which didn’t have it yet.

July 21, 2015

The Hamilton County Prosecutor’s office obtained the body-cam video.

WCPO requested the body-cam video and any 9-1-1 recordings from the CPD.

July 22, 2015

WXIX asked for a copy of the body-cam video from the general counsel for the University of Cincinnati.

Also on July 22, an employee of the prosecutor’s office sent a general email addressed to “Media,” stating that the body cam video would not be released, citing the Sixth Amendment, the Confidential law enforcement investigatory record (CLEIR) exception to the public records act, and State ex rel. Miller v. Ohio State Highway Patrol, from the 12th appellate district,which at the time was pertinent authority.

July 23, 2015

The AP requested all videos from the incident from the prosecutor’s office.

Also on July 23, the University of Cincinnati released the requested records except for the body-cam video. That same day, Prosecutor Joe Deters released a statement explaining why he refused to turn over the body-cam video. The statement said that both the law and common sense supported his position. His office needed time to do a complete investigation, and did not want to taint the grand jury process. The grand jury had not yet seen the video. The statement said the video would be released at some point.

July 24, 2015

WKRC requested the video from the prosecutor’s office.

July 27, 2015

The Relators filed a complaint in mandamus in the Supreme Court of Ohio arguing that the prosecutor had violated the Public Records Act by failing to make the body-cam video available for inspection and copying, or to prove that it was exempt from disclosure. Relators also sought attorney fees and statutory damages.

These are the Relators: The Enquirer, WLW, WCPO, WXIX, AP, WCPO—two print media and four TV stations.

The prosecutor filed an answer, claiming the requested video was exempt from the public records act as both a confidential law-enforcement investigatory record (CLEIR) and a trial-preparation record.

July 29, 2015

The prosecutor released the video, two days after the complaint was filed, and immediately after the grand jury had concluded its deliberations and indicted Tensing.

Mandamus

Oops-Wrong Party

The Public Records law requires suit be brought by a person allegedly aggrieved by the failure of a public office to make a public record available.

Since the mandamus action was brought only against the prosecutor, the court dismissed the action as to the Enquirer, WCPO, and WXIX because they failed to submit a public records request to that office, and therefore were not “aggrieved” by the prosecutor’s failure to produce the video, as the statute requires.

Writ Denied

As to the remaining parties who did make the request of the prosecutor’s office (WLWT, the AP, WKRC), the court denied the writ. The court did not actually decide whether the body-cam video was a public record, but simply assumed for the sake of argument that it was, and found that it had been produced July 29, 2015, two days after the action was filed. So, the action was deemed moot to the extent it sought release of the video.

Statutory Damages and Attorney Fees

Statutory damages can be awarded if a public record has not been provided promptly. There is no statutory deadline for production after a request is made, or definition of “promptly.” The only requirement is that a copy must be made within a reasonable period of time. (Reasonable—that great word, adored by my torts students!) The timeline shows that the prosecutor did respond in a reasonable period of time. The court found the prosecutor was entitled to review the video to see if any redaction was necessary. The video was released six business days after it was initially received by the prosecutor’s office. So no damages or attorney fees for WLWT, the AP or WKRC-the relators who made the request from the proper entity.

Concluding Observations

Here’s what I wrote after argument;

“This looks like a win for the prosecutor’s office, but only because that office did turn over the tape within a reasonable period of time under the facts and circumstances of the situation, not because the video is not a public record, and not because it was properly classified as a CLEIR exception, or because the case is moot as to some of the relators.”

I also predicted no attorney fees, because, as I wrote, “We are in uncharted waters here, and the tape was not unreasonably withheld.”

It was also probably a little embarrassing for the Enquirer to be among the three media relators dismissed for bringing suit against the prosecutor when they hadn’t requested the tape from his office. But in the end, it made no difference.

This decision could also been seen as a victory for former Justice Andy Douglas, who argued on behalf of the prosecutor. He argued that the case was moot, as the tape had been released to the media and to the public. But, he argued, even if the case were not deemed moot, the tape was released within a reasonable time of legitimate requests. He also argued that no attorney fees should be awarded in this case because the court should not punish a party for taking a rational stance on an unsettled issue of law.

The court did not decide in this case if the body-cam video was a public record or was subject to one of the exceptions to a public record. But earlier this month, in State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, Slip Opinion No. 2016-Ohio-7987 the court held that Ohio law enforcement dash-cam recordings are public records that for the most part must be disclosed except for certain specific investigatory work product. In the dash-cam case, only a 90 second interview between the officer and the fleeing suspect was deemed non-disclosable.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.